Critically Evaluate the Effectiveness of the Legal Regime

This paper presents an analysis of the legal regime for protecting habitats in England and Wales by firstly examining a number of core underlying root causes of the weaknesses within the legal regime of protection for wildlife habitats. The paper progresses to examine specific rights and specific issues which affect the ability of the legal regime for wildlife protection to deliver effective protection at the domestic level. More specifically the paper examines how the deficiency can emerge between the policies made at the European level in comparison to the enabling domestic legislation which impact upon the delivery of the implementation of the wildlife protection domestically. The final focus of the paper is on the case law and jurisprudence which highlights how a differential standard of protection between the Directives and the domestic Regulations can be cured somewhat by the judicial interpretation accorded to the wildlife protection. The summary conclusion draws together the paper and highlights the key points to answer the question tasked.

Habitats; conservation; wildlife; protection; birds; natural habitat;

This paper will present a review of the effectiveness of the legal regime for protecting wildlife habitats in the UK. The paper will begin by considering how the law operates to protect natural wildlife and will then subsequently progress to examine what extent the law of habitat protection reflects the ‘voluntary principle’ in implementing wildlife conservation. It is identified by Ledoux et al [1] that the Habitat Directive [2] and the Bird Directive [3] are the framework and strategy for biodiversity conservation based on the use of regulation and protected areas as precautions for nature protection within the European Union (EU). The Directives form together to create the network within which the protection of habitats and species of importance can be protected on a bio-geographical scale. The Habitat Directive was given effect in the UK under the Conservation (Natural Habitats, etc) Regulations 1994. However, the key issue is the method and choice of laws employed by the EU to create the regulation within the protection of wildlife which has arguably created a number of weaknesses within the delivery of protection for wildlife. Jordan argues that implementation of European laws lies at the ‘sharp end’ of European environmental policy and suggests that the EU’s policies for environmental protection can only be judged by the impact they have on the ground level. [4] It can be argued that three core issues can form together which create uncertainties within the framework of laws for wildlife protection:

(1) As the choice of legislation was a Directive, the policy pursued was a general uniform policy applicable across the EU leaving it to Member States to implement fully the Directive within their respective legal systems. This has directly resulted in a differentiation in approach throughout the EU with some countries opting to take a minimalist approach in creating a comprehensive legal framework.

(2) Miller argues that the much of the early jurisprudence developed by the courts took a distant approach opting rather for “wait and see” how other jurisdictions grounded the conservation protections. [5]

(3) Turner et al argues that the system of allowing for a designation of an area of conservation fails to recognise and make allowances for natural change and management problems can arise by failing to make allowances for the dynamics of the changes within an ecosystem. [6]

It is evident that these three core issues form together to leave an indelible mark upon the development of jurisprudence on the European Community environmental protection law. Essentially the Habitat Directive broadens the scope of the Birds Directive to provide protection for all flora and fauna and all natural habitats deemed worthy of conservation. [7] Therefore the core root of conservation protection afforded by the Directives is to maintain and restore areas of natural habitats and special species of flora and fauna by creating a network of laws which create obligations upon the state to designate areas of conservation. Core protections found in the Habitat Directive is that plans and projects which can cause a deterioration of natural habitats require Members States to avoid such plans and projects. [8] Member States are required to ensure that projects do not ‘adversely affect the integrity of the site concerned’. [9] Additionally the Directive also sought to establish a network of special areas of conservation by requiring Member States to contribute to a European wide agency, ‘Natura 2000’ by listing key designated areas of specific conservation. [10] The key words to from the Directive which create the legal protection of wildlife is the definitions to be accorded to what constitutes ‘deterioration’ of natural habitats and how might a project adversely affect the ‘integrity’ of a site’s natural flora and fauna. It is noted by Nolkaemper that the key to the success or failure of the Habitat and Birds Directives is to be measured by the way in which the courts allow states to invoke exemptions to the Directives under Article 6(4) of the Habitat Directive. [11] Article 6(4) of the Habitat Directive allows Member States to invoke an exemption from the Directive where certain conditions are satisfied and in particular the Directive makes allowances for Member States to infrastructure projects in protected areas.

The role of Member State in identifying the conservation areas was originally thought to be one within which the State could have full freedom whether or not to select a site as a protected area. However, in Commission v Netherlands [12] examined whether firstly a state had a duty to classify areas of special protection and conservation, and whether a state was under a duty to classify the total number of special areas of protection and conservation. In this particular case the Netherlands had only classified less than half of their identified areas of special protection and argued before the European Court of Justice (ECJ) that the Directives could be construed to create a positive obligation upon Member States to classify a given number or a total number of special areas of protection. The ECJ in this particular instance found in favour of the Commission and appeared to be heavily influenced by the fact that as the Netherlands had only classified less than half of its conservation areas; it had failed in delivering its obligations under the Directive. The case highlights that Member States are under an obligation to firstly identify those sites within its borders that are areas of special protection and there appears to be a minimum level of protection required in classifying those sites according to the standards of the Directives. The measures taken by the Netherlands showed that where states actively decide not to classify an area of special protection because it operates on a belief that it is not required by the Directives to act, would not necessarily fulfil their obligations under the Directives. The case highlights that Member States operate within a limited area of discretion in deciding whether or not to classify an area of special protection in order to fulfil their obligations under the Directives.

Where an area is classified as an area of designed special protection, Article 6 of the Habitat Directive provides strong protection for the wildlife, however, the protection afforded cannot be considered absolute. Specifically, Article 6(4) of the Habitat Directive provides that for all special areas of protection Member States can only invoke an exemption from the Directive if the interest they are pursuing constitutes an ‘imperative public interest’ and there are no alternative solutions but the adverse effects can be compensated by employing strategies to either move the habitat or implement a minimalist action plan to take the least disruption action to the habitat. [13] For all other natural habitats social and economic interests can only be pursued on foot of an opinion from the Commission. It is evident that the framework of laws here operates to balance the interests of protecting the habitat against those interests of pursing the social and economic policy which is going to affect the habitat. It is important to note that whilst Article 6 does not attempt to provide protection of habitats and wildlife in absolute terms but rather provides a minimum threshold which Member States must achieve. Additionally, it makes provision for the scrutiny of decision which is likely to affect habitats and wildlife. This creates an accountability mechanism within which the courts can balance whether there is actually an overriding interest in the policy being pursued by the Member State against the interest of protecting the wild life. There is the inherent flexibility to review the decision of Member States and their agencies in the exercise of an arbitrary power to interfere with habitats and natural wildlife. The construction of the protections for habitats and wildlife in these terms allows the necessary flexibility to consider each project of social and economic concern to determine which interests are the greatest overriding interest.

The overarching issue with European environmental legal protection is the way in which the laws are implemented in practice at the ground level. Early studies conducted by Krislov et al highlight the problems with domestic implementation and cited a ‘growing problem of compliance’ with many states opting to implement the lowest standard of environmental protection. [14] Jordan identifies a core deficiency with the strong implementation with environmental laws in the EU is in part due to the way in which the legal and political powers are divided amongst the main actors in the EU. [15] The imbalance of power held between the Commission and the ECJ make the EU geographically and politically disconnected from the ground level implementation of the EU’s legal machinery. [16] Jordan also identifies that the rationale behind the Directives as a vehicle of law making does not necessary lend good policy in the area of environmental protection. [17] Whilst the philosophy behind a Directive is to allow the policymaking to happen at the EU level but allow the implementation at domestic level chosen by the domestic government. Jordan argues that the disconnection between policymaking and implementation does not lend to good practice within the reams of environmental legal protection. [18] He accounts that in the area of environmental protection there is an increased risk that the policymaking occurring at the European level is likely to be lost in translation when participated within the domestic legal system through national legislation. As environmental law is a sensitive political issue that can affect national projects of social and economic interests, many governments will pursue environmental laws in implementing legislation with a ‘deficit and gap’ in comparison to the enabling Directive. [19] After three decades of research Hill suggests that the size of the deficit gap between policymaking and implementation is largely depended upon the view of the analyser. [20] Haigh argues that there are at least two ways in which the deficit gap can be examined in environmental law and policy; firstly from the ‘formal compliance’ which is principally examining the transfer of the Directive into domestic legal policy to determine whether all of the objectives of the Directive have been met. [21] Secondly Haigh suggests examining the practical implementation and the actual enforcement of the legal framework in the domestic legal system.

In examining the UK’s implementing legislation of the Habitat Directive, Ledoux et al argues that the Conservation Regulation 1994 did not clear up any of the uncertainties created by the Directive. In examining some of the case law before the UK courts it is interesting to note the approach taken by the domestic in approaching environmental protection. In R v Secretary of State for Trade and Industry and Others [22] the courts had to consider whether a challenge brought by Green Peace against the Secretary of State for issuing licences under the Habitat Regulations to oil companies for exploration in the seas surrounding the UK. Of particular interest in this case was the fact that the oil explorations were to take place outside of UK territorial waters but was within the Continental Shelf which the UK had jurisdictions. The domestic Habitat Regulation only applied to the UK territorial waters and therefore the courts in this instance had to interpret whether the Habitat Directive could have applicability in this scenario where the domestic enabling legislation did not apply on the facts as the exploration was taking place outside of the 12 mile territorial limit.

The argument presented by the Secretary of State was that in this particular case the limit of the Habitat Regulation was in fact only up to the 12 miles covering the territorial waters and did not include the waters within the Continental Shelf. Alternatively, Green Peace argued that the requirements of the Habitat Directive, and any enabling domestic legislation extended beyond the 12 mile territorial water limit to encompass all areas of the sea which the UK had a responsibility over including the Continental Shelf waters.

They based their argument on the fact that the Continental Shelf waters were not recognisable as being within the legal meaning of the UK ‘territory’ within the strict sense of the word, but rather the UK had jurisdiction over their Continental Shelf waters which could be considered an Exclusive Economic Zone. Green Peace argued that because of this jurisdiction the Directive and the Regulation should apply in determining whether the licences should be granted. The Habitat Directive did not include a limit as to where the Directive should stop in terms of habitats under the sea and therefore it was entirely within the meaning of the Habitat Directive to include the Continental Shelf where the oil exploration companies had sought their licences to pursue their economic interests. The court held that in this particular instance the phrase “the European Territory of the Member States” had no specific definition in law within the Directive. [23] Additionally the court held that it was entirely within the Directive to include the Continental Shelf areas of the sea which the UK were responsible for and they also concluded it was possible for the Directive and the enabling Regulation to go beyond the mere territorial waters. [24] The court also held that the Directive was capable of having direct effect which allowed Green Peace to rely upon it in their application before a UK court. After the court had determined that the Habitat Directive could have applicability in the UK and in particular the licences sought by the oil companies, the next issue to consider was to determine whether the licences should have been granted by the Secretary of State. The case highlighted the importance of the Habitat Directive from a substantive restriction perspective. It showed that the Directive was not merely about examining the procedures in the issuing of the licences but rather about the substantive impact of the drilling and oil exploration in the seas off the UK.

Green Peace presented two arguments in support of the wildlife habitats under the sea in the Continental waters: firstly drilling with a view to oil exploration in this area would in fact kill a natural coral which supported a unique wildlife habitat under the sea. Secondly, they argued that whales, dolphins and cetaceans all would be impacted by the drilling and exploration which represented a serious threat to the conservation of this wildlife habitat. It is also important to point out that cetaceans had a special protection within the Habitat Directive under Article 12 which required Member States to prohibit ‘deliberate disturbance’ to these species.

The final decision of the court was that it granted permission to apply for judicial review of the licences granted by the Secretary of State and ruled in favour of Green Peace. The court made a declaration that the Habitat Directive would apply to the Continental Shelf up to a limit of 200 nautical miles from the baseline of where territorial sea is measured. The judgement highlights the potential positive effect judicial interpretation can have on the delivery of rights emanating from a European Directive. In light of the judgement the UK will have to take into account the Habitat Directive when issuing any licences for exemption from the Habitat Directive in all waters surround the UK up to the limits specified by the court. The case also highlights the ability of the domestic court here to close a deficiency within the enabling Regulation which sought to implement the Directive. It is argued that as the UK had specified a limit to the territorial waters of 12 miles because it sought to implement a minimum threshold of liability for the government against actions for oil exploration within the Continental Shelf, especially in consideration that the original Habitat Directive did not specify the limits of a Member State territory. Therefore, this case highlights the significant role judicial interpretation can play in ensuring the domestic applicability in practice represented in the spirit of the original Directive when the enabling Regulation falls short of the original European policy. In referring back to Haigh’s dual analysis of formal compliance and practical implementation in environmental policy discuss above, this case highlights the formal compliance of the Habitat Directive was achieved through the Conservation Regulation 1994 but was deficient from the perspective in that on the face of the law it did not technically apply as the Regulation sought to limit the protection to the 12 miles of the territorial sea. However, it also shows that the judicial interpretation used and methodology applied by the courts allowed this deficit to be correct when it came to apply the law in a practical implementation.

Other cases decided by the courts have taken a similar approach. In Robinson v White [25] the respondent was a farmer who had laid poison with a view to killing some birds who were damaging his arable crops to the value of £2,500 per year. The respondent argued that the poison was a necessary act to counteract the serious damage to his crops and was entitled a defence under the Protection of Birds Act 1954. On an opinion from the Court of Appeal the court held that the defence only operated to the killing of a bird and not to the laying of poison. Therefore the Court of Appeal directed that the magistrates should convict the respondent for laying the poison as the defence would only operate for killing the actual bird doing the harm to the crops. This case highlights that the Court of Appeal were unwilling to allow a defence to killing a bird on grounds of necessity for the laying of the poison. Ultimately, this case close provided analysis of where the defence to a killing a bird would operate and it appears in this factual case it would only operate where the responded had the killed the actual birds causing the damage to his crops.

In R (on application of JHM Newsum) v Welsh Assembly Government [26] the claimants had sought to attain a licence under the Conservation Regulations which would allow them to relocate a population of great crested newts. The Welsh Assembly refused to grant the licence on the basis that there was no overriding public interest in allowing the quarry to continue with their economic interests and plans even though they already had received planning permission. Upon judicial review the claimant succeeded in challenging the Assembly’s refusal to grant the licence and the Assembly appealed. The court held that the Assembly was correct in deciding the case on the basis of whether there was an overriding public interest in the economic and social interest in allowing the claimants a licence to move the birds. The court refused to accept that just because the claimants had planning they could automatically assume a right to the licence. The correct test was the overriding public interests test which the Assembly was entitled to determine whether or not to issue the claimants with a licence. The case here highlights the fact that the courts were willing to allow a the Habitat Directives and Conservation Regulations to form the basis of the test rather than simply allowing economic and social interests to trump wildlife and habitat protections when planning permission has been granted for a particular purpose. Allowing the Habitat Directives and Conservation Regulations to form the basis of analysis will ensure any decision to grant a licence would be taken with consideration of the procedural and substantive protections within the Directives and Regulation.

Conclusion:

The framework of laws operating within the UK emanate in principal for the European Community Directive for Habitats and Birds. The effect of the Directives is to create a network of laws where the policy is established at the European level and the implementation is tasked at the domestic level. The distinction between the policymaking and the policy implementation leaves open the possibility that some of the rights can be lost in the translation from the European legal structure to the domestic legal structure. It is evident that in the area of environmental legal protection it becomes a sensitive political issue for domestic Member States to implement in that environmental protection law can have the greatest effect on social and economic activities which may be portrayed negatively in the domestic Member State. Whilst there is an acknowledgement in the literature that there is some uncertainties between the enabling legislation and the originating Directive, the ability of the domestic legal courts to employ interpretation techniques can operate to highlight that deficiencies which emerge from the implementation of the European Directive into the domestic enabling Regulation can be cured by the domestic judiciary by employing specific interpretation techniques which focus on the original Directive.

The effect of whether the ‘voluntary principle’ still applies in implementing wildlife conservation is somewhat questionable as a result of the case of Commission v Netherlands. [27] The fact that the ECJ reviewed the process within which the Netherlands had decided whether or not to issue designated areas of special protection, showed the potential that Member States are under a positive obligation to ensure that areas which should be classified as an area of special protection become classified.

In final conclusion it is argued that the effectiveness of the legal regime for protecting wildlife in the UK is heavily dependent upon the judicial interpretation given to the actual implementing laws from the European Directives. Whilst the Directives set the targets for the protection, it always likely that the implementing legislation will be translated to provide a lower threshold and standard of environmental protection. The case law highlights that it is the judicial interpretation and the methods the judiciary employ in interpreting the implementing legislation, that can cure any defects or deficits in protection at the domestic standard. Whilst the protections within the Habitat and Birds Directives are constructed in absolute terms, it is submitted that this is a positive influence in that it provides the very essence and core necessity of flexibility to determine whether a breach has been committed. Additionally, the Directives provide a solid procedural framework to establish the correct format for issuing a exemption under the Regulations for social and economic interests. It allows the courts to balance the greater interests of the social and economic interests against those of the environmental interests. Through the balancing exercise the protections afford are strengthened in that Member States will have to build into their decision making process key safeguards for the protection of wildlife and natural habitats.